In his reply, Timothy Sandefur claims that progressive jurists have acted inconsistently: at times respecting individual rights but often disregarding them in favor of democratic deference. Sandefur attributes this pattern to “incoherence.”
The allegation of incoherence seems strange given certain predictable patterns. Sandefur celebrates the Court’s 5-4 opinion in Lawrence, but decries the 5-4 opinion in Kelo, rendered just two years later. But it was precisely the same five judges who formed the majorities in both cases. Were all these judges simply incoherent?
Progressives, in my view, have been quite coherent, not only in recent years but for the past century. A review of some of the major cases mentioned in our discussion reveals a fairly consistent pattern, reflecting a well-developed understanding of the relationship between history, the people, the elites, and individual rights.
American democratic progressivism was born of the Hegelian notion that History, not Nature is or should be the first principle of politics. “Progress,” as the name implies, assumes that forward motion brings improvement. Nature, then, does not provide universal, fixed norms—the Founders’ so-called “laws of nature and nature’s God.” Rather, nature is to be overcome via historical progress.
How does History happen in politics? First, a supra-rational Spirit moves; this spirit unfolds, expresses itself, through both the people and the elites, but in very different ways. The people act subrationally in giving voice to the spirit via demands, feelings, and wants, evidenced by “demonstrations” and other forms of “expression.” The people engage not in rational “causes” but in sub-rational “movements.”
The credentialed elites, in contrast, provide the rational implementation of these movements and expressions. As a twist on Madison, the passions of the people, sublated into the reason of the few, should govern.
What about “rights”? Progressives certainly believed in “liberty” and other rights. But rights were not fixed or determinate, but always subject to redefinition. As Franklin Roosevelt said in his first presidential campaign, “[t]he task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon Government and those who conduct Government.”
Progressive jurists have consistently understood their task to be either to facilitate or, when necessary, to initiate, these redefinitions. During the past 100 years, the redefinition proceeded in two main steps.
In the first half of the twentieth century, the Court served mainly as facilitator. The political branches were trusted to initiate the new rights. Then (as now), the rights on the agenda encompassed certain economic security and stability, such as the guaranties enumerated in Franklin Roosevelt’s “Second Bill of Rights.”
But the Constitution’s stubborn words were a problem. That text protected things like the reserved rights of the states, property rights, and the right to bear arms—all obstacles to reform. Moreover, those words prohibited the concentration of legislative, executive, and judicial powers in the hands of credentialed, professional elites; such separation of powers threatened to hamstring the dynamic, flexible, and (thus) effective implementation of progress by administrative experts. Those rights had to go.
In case after case after case after case, progressive jurists labored to clear the old rights of individuals and the states out of the way, so that the government—and especially the national government—could implement the new rights.
At the same time, in the interest of progress, progressive jurists redefined First Amendment freedoms. Brandeis and Holmes introduced a virtual neologism “freedom of expression” into our legal lexicon, and set about declaring that our Constitution protected not mere deliberative speech, but also threats, lies, and obscenities.
Now to a self-governing community, whether a legislature, a tribunal, or the people at large, such sub-rational expressions pose threats to good deliberation and may therefore be restrained. But for the progressives, the masses were not supposed to be deliberative or rational; they were supposed to be teeming and loud—precisely to give voice to the Zeitgeist. Restrictions on vulgar or even violent speech tended to quench this Spirit, rather than hasten the day of its arrival.
Felix Frankfurter explained the apparent contradiction in the progressives’ approach to expressive and economic liberties in these terms:
[Justice Cardozo, like Justice Holmes] deferred so abundantly to legislative judgments on economic policy because he was profoundly aware of the extent to which social arrangements are conditioned by time and circumstances, and of how fragile, in scientific proof, is the ultimate validity of a particular economic adjustment… But history had also taught him that, since social development is a process of trial and error, the fullest possible opportunity for the free play of the human mind was an indispensable prerequisite.
Progress required, then, both the exclusion of property rights and the inclusion of broader expressive liberty.
Footnote 4 of Carolene Products was designed to serve this dual purpose. The textualist rule served the progressive agenda by deflating “liberty of contract” while inflating the liberties of expression.
But pace Kermit Roosevelt, this textualism was counterfeit. The progressives never showed any vigilance for the other, non-expressive textual rights, such as the property rights of contract or firearms, let alone the political rights of the states; those rights were inconsistent with the Zeitgeist.
In the second half of the century, progressive jurists grew tired of playing second fiddle to politicians and grew frustrated with the lethargy of the legislatures. In at least two ways, the people were just stuck on stupid. The Court had to push things along.
First, although the Spirit had spoken clearly, Congress had failed to implement fully the Second Bill of Rights; the Court, then, had to resolve the problem by establishing the fuller welfare state by decree. Second, History had put a whole new set of rights on the agenda, for the Spirit had spoken loud and clear through the Sexual Revolution. But the people were dragging their feet, sometimes even backsliding. The Court, then, had to implement the new rights, whether the right to engage in non-marital sex itself, or the necessary concomitant rights of contraception and abortion. In both cases, the time had come.
As Cass Sunstein has pointed out, the election of Nixon instead of Humphrey frustrated the first project. Nixon appointed four moderate judges. Unlike Humphrey’s likely appointees, these four were insufficiently progressive to impose welfare rights, and progressives have not (yet) renewed these efforts. But as to the second project, Nixon’s judges largely cooperated with History—and in Justice Blackmun’s case, with great enthusiasm.
In our day, as Sandhya Bathija remarks, the current item on the agenda is the redefinition of marriage—and the concomitant redefinition of parenthood to the detriment of the child’s right to her natural mother and father. For progressives, the sprit had moved, the people have spoken, and now the Court and other elites must enforce the new right.
The conclusion that the people have endorsed this new right may seem strange to many of our readers: those that still think, as somebody once said, that “the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.” After all within the last decade, the majority of the voters in a super-majority of the states emphatically rejected this new right. Even in the past few years, despite significant movement in popular opinion, only a handful of states have endorsed the right via the legislative or electoral process.
In the last election, traditional marriage only lost narrowly in solidly blue states. Had Mitt Romney performed as well, he would have won nationally by a large majority. Haven’t “the people” spoken against not for “marriage equality”?
But for progressives, both novelty and elite ratification are indispensable prerequisites for authority. Once the people move in the right direction (as determined by elites)—in favor of novelties, whether designated “universal healthcare,” “living wage,” or “marriage equality,” only then have the people truly expressed themselves. Any contrary votes are merely provisional, not authoritative.
The “movement” per se is sufficient, and the movement happens without the need for any bicameral or bipartisan votes. And with respect to “marriage equality,” the elites have ratified the movement with breathtaking uniformity.
Some non-progressives may welcome these developments. In the peroration to his opinion in Lawrence, Justice Kennedy declaimed as follows:
[T[hose who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment…knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
So History allows us to discover new rights because old necessities are now oppressions.
But keep in mind that History can banish old rights just as easily as it can welcome new ones. History works both ways. Individual rights can be included as old necessities are deemed oppressive, but old rights can be discarded as old ideas of “oppression” give way to new notions of necessity.
Accordingly 75 years earlier, nearly to a day, Justice Brandeis, in his famous progressive dissent in Olmstead, wrote a perfect complement to Justice Kennedy’s maxim:
We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.
In support of this proposition Justice Brandeis cited another great progressive opinion: Justice Holmes’s majority opinion in Buck v. Bell (a case that would likewise have a supporting role in another famous progressive opinion: Roe v. Wade).
In the decades after Roe, progressives discarded the eugenics project as unfashionable and otherwise inappropriate. Still, the principle of Buck, Roe, Lawrence, and Kelo is the same. Times change. Rights change—whether by addition, subtraction, or otherwise. The job of the progressive jurist is to facilitate and, if necessary, initiate this redefinition.
Where will History take us next? What will the next century of progressive jurisprudence provide? For the fuddy-duddies—i.e., those, like me, who believe in such old-fashioned notions as popular self-government, the rule of law, and fixed individual rights—it’s gonna be a bumpy ride.
 Justice O’Connor dissented in Kelo, but concurred in Lawrence, but did not join the majority’s interpretation of “liberty.”
 Should the Affordable Care Act collapse, but progressive presidents appoint a comfortable majority on the Court, such new efforts are, I believe, quite likely.
Maine,New Hampshire,New York,Minnesota,Maryland, andWashington.